Ohio murder trial using eye-blink testimony begins

LISA CORNWELLAssociated Press Published: November 13, 2011 12:16 PM

CINCINNATI (AP) -- A dying man's videotaped eye blinks, which prosecutors say identified his killer, will be a major part of the testimony at the suspect's trial beginning Monday in Cincinnati.

Ricardo Woods, 33, of Cincinnati, is charged with murdering David Chandler last year. Police interviewed Chandler while he was in the hospital, hooked up to a ventilator and paralyzed after being shot Oct. 28, 2010, in the head and neck. Hamilton County prosecutors have said Chandler identified Woods in a photo through a series of eye blinks during a hospital interview.

Chandler, 35, died about two weeks later.

Judge Beth Myers of Hamilton County Common Pleas Court ruled in September that jurors will be allowed to see the video of Chandler's blinking eyes despite a defense argument that the blinks weren't conclusive and should not be allowed in evidence. Prosecutors have said they were conclusive.

After reviewing the video, Myers said she found the identification "reliable" and said that it wasn't made by routine involuntary eye blinking, but by pronounced, exaggerated eye movements.

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Woods' attorney, Kory Jackson, has argued that there could be flaws in interpretation of the blinks and that the blinks were inconsistent.

"The judge on at least two occasions disagreed with how the detective interpreted some of the blinks," Jackson said after the ruling.

Jackson also said that he was considering asking that a doctor review the medical records to see what effects Chandler's condition and the drugs used to treat him would have on his ability to understand and respond to questions.

Christo Lassiter, a professor of law and criminal justice at the University of Cincinnati, says while the blinking evidence is "highly unusual," the legal standard is whether the evidence is reliable.

"That, of course, turns on the issue of whether the victim had the ability to comprehend the questions put to him and, secondly, whether he had the competence to communicate his answers in regard to the questions put to him, which the prosecution alleges that the blinking of the eyes represents," Lassiter said.

The defense is expected to try to cast doubts on the reliability of the eye-blink testimony, and Lassiter said he would expect that testimony to be challenged by the defense on appeal, if Woods is convicted.

"But the key issue is the reliability, and the judge apparently made the necessary findings, which are very difficult to challenge on appeal because these are findings of fact," Lassiter said.

Lassiter said he is not familiar with any other criminal cases where eye blinks were used as evidence.

Chandler was shot while he was sitting in his car, and he and Woods knew each other through drug deals, authorities said.